Environment Agency to charge for some DCO advice

This entry reports on an announcement by the Environment Agency to formalise its charging for certain advice on Planning Act 2008 and other projects.

Background

The Planning Act regime requires a significant amount of pre-application consultation, with a list of statutory bodies that could exceed 100 who might have to be consulted.

Furthermore, there is a duty under the Environmental Impact Assessment regulations to provide promoters with information relevant to their preparation of an environmental statement on request.

After applications are made, there is considerable further engagement with statutory bodies and others in negotiating mitigation that would satisfy the bodies concerned.

Against this background is the somewhat vexed question of whether statutory consultees, or any other affected party for that matter, should be able to charge promoters for working on their applications. There is already a process recognised in law for local authorities to seek, or be offered, payment by developers for advice via 'planning performance agreements' (PPAs), which does cover the Planning Act regime, and some statutory bodies are able to charge for advice in particular circumstances, but there is no general process for charging.

Many landowners and statutory undertakers wouldn't have had to do anything if the project hadn't come along, and so there is at least an argument that they should not be out of pocket as a result. Furthermore, statutory bodies are suffering from budget cuts that mean they have difficulty dealing with all the requests for advice they receive and may end up being more negative as a precaution if they don't have time to consider proposals in detail. On the other hand, nationally significant infrastructure projects have a public interest element in that they are usually needed for UK plc to some extent or other, and private developers shouldn't need to subsidise public bodies carrying out their public functions.

In practice, project promoters deal with this issue on a case by case basis. If they feel that it would help their application if they settled another party's concerns, they might be prepared to pay for the privilege, but then again they don't want everyone to start asking to be paid. It's a difficult balance to strike.

Latest development

On 2 January, the Environment Agency announced that while it would continue to comply with its statutory obligations for free, for any promoters of development consent orders or indeed other projects, they are now going to charge £84 per hour for 'detailed technical advice'.

It is helpful to see this information up front so that developers can decide whether to take advantage of the paid service. On the other hand, should the EA be doing this anyway? The covering letter states that it cannot continue to provide the service for free due to budget cuts. Where is the dividing line between 'less detailed issues' and 'detailed technical advice'? The EA has provided this document to try to make the dividing line clear.

If this is a move towards others doing the same, then it will add to the cost of projects (even if it isn't, I suppose), but then again it might speed up the pre-application stages and simplify their examinations. Thus in the long run it may save money given that time is money.

I suspect we haven't seen the end of this issue and it is something I will keep any eye on, and let you keep an eye on, as matters progress.